Legal Trends in Bio-Ethics; Summer 07

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162 The Journal of Clinical Ethics Summer 2007

GENERAL INTRODUCTION

The laws governing bioethics issues are con-fusing and sometimes contradictory because ofseveral types of tensions inherent in our legalsystem. Legislatures and courts work in differ-ent time frames and with different priorities.The U.S. constitutional guarantees of separationof church and state and individual rights makebioethics issues involving personal, moral, orreligious convictions particularly contentious.

Each state also has its own constitutionalprotections, some of which clearly mirror thosein the federal Constitution and others that don’t.

Legislatures and courts play different rolesin our constitutional republic. Legislatures are

Legal Trends in Bioethics

Sigrid Fry-Revere,with the research assistance of

John Joseph Leppard, IV, Molly Elgin,William Bryce Hankins, III, and Scott Ryan Grandt

Law

Sigrid Fry-Revere, PhD, JD, is Director of Bioethics Studies at the Cato Institute, Washington, D.C., [email protected] Joseph Leppard, IV, Molly Elgin, William Bryce Hankins, III, and Scott Ryan Grandt are Interns at the Cato Institute.© 2007 by The Journal of Clinical Ethics. All rights reserved.

Readers who learn of cases, laws, orregulations that they would like reportedin this column are encouraged to e-mailSigrid Fry-Revere at [email protected].

by nature democratic and can react relativelyquickly to changes in the political climate.Courts, on the other hand, are inherently anti-democratic. As a matter of fact, their main con-stitutional function is to protect the rights es-tablished by our various constitutions from vio-lation by legislative action. Courts are also in-herently conservative in their reaction to eventsbecause they are bound by precedents and pro-cedural processes that are designed to assurethat major philosophical changes happen gradu-ally.

Legislatures and courts, in the area of bio-ethics, also act under the existence of two con-trary presumptions. Legislatures tend to act witha presumption in favor of prevailing moral be-liefs. The courts, on the other hand, have thestructural and theoretical obligation to protectindividuals from majoritarian decisions thatunnecessarily violate their constitutionally pro-tected freedoms. They also have an obligationto uphold the separation of church and state.

163Volume 18, Number 2 The Journal of Clinical Ethics

cian-patient relationship. The following are afew quotes from the majority opinion that couldbe used by legislatures and courts to “secondguess” a physician’s medical judgment. Theopinion states, “There can be no doubt the gov-ernment ‘has an interest in protecting the in-tegrity and ethics of the medical profession.’ ”Citing Washington v. Glucksberg, 521 U.S. 702,731 (1997). It is hard to imagine what types oflaws and regulations could not be justified onsuch grounds. The opinion also states, “TheState has an interest in ensuring so grave achoice is well informed.” It is easy to imagineother grave medical choices in which the Statemay have an interest. It is reasonable, the Courttells us, for Congress to regulate a procedure that“undermines the public’s perception of the ap-propriate role of a physician during the deliv-ery process, and perverts a process during whichlife is brought into the world.” This could eas-ily be just as true of end-of-life decisions as ofthose made at the beginning. Finally, we aretold, “Considerations of marginal safety, includ-ing the balance of risks, are within the legisla-tive competence when the regulation is ratio-nal and in pursuit of legitimate ends.” This sug-gests legislatures and courts can restrict the useof medical procedures on moral or other rea-sonable grounds even if the alternatives are notquite as safe. See “The Rights of Maturing Indi-viduals and Their Parents” below for more de-tail on the Carhart decision.

Another issue that has received considerableattention is whether or not vaccination againstthe human papillomavirus (HPV) should bemandatory. Most of the bills on this topic havestalled because someone has raised at least oneof the following objections: (1) vaccinationagainst a sexually transmitted disease mightincrease promiscuity, (2) the vaccine has beeninsufficiently tested, and/or (3) the mandate isbeing encouraged for political/financial reasonsrather than true concern for the health of youngwomen. The motives of some legislators wereimpugned when it was discovered that Merck,the sole manufacturer with FDA approval tomarket an HPV vaccine, had not only been ac-tively lobbying to have the vaccine mandated,

So, in bioethics cases, courts often have to dealwith preventing governments, either throughlegislation or other state action, from imposingmoral or religious preferences on individualswho might not agree. Thus courts tend to showgreater deference to individual choice than leg-islatures do, and tend to become more cautiousthe more divisive the issue.

An understanding of these inherent tensionsbetween legislative and judicial action and thevarious individual interests being balanced bythe courts will make it easier to understand le-gal trends in bioethics.

Please note that cases, laws, and regulationslisted in earlier columns will not be repeatedunless there has been a change in status sincethe last reporting period. Updates on previouslyreported cases, laws, and regulations are markedwith an asterisk (*).

INTRODUCTION TO JCE SUMMER 2007

The most significant development reportedhere actually took place after the January toMarch reporting period for this issue, but it isnevertheless included, given its importance.The U.S. Supreme Court ruled on Gonzales v.Carhart on 18 April 2007. Both the ruling andthe dicta in this case will have far-reaching im-plications in years to come, not only for abor-tion rights, but for the medical profession as awhole.

The Court’s specific ruling was that the fed-eral Partial-Birth Abortion Ban Act of 2003 wasconstitutional. In so ruling, it held that any lawrestricting abortion rights would pass constitu-tional muster as long as it was reasonable. Thisis a lower standard than the heightened scru-tiny standard the Court applied in earlier abor-tion cases, and it shifts the burden from the gov-ernment having to prove a law doesn’t violaterights to the citizens who feel their rights havebeen violated. This will make it harder for in-dividuals who believe their rights have beenviolated to succeed.

In arriving at its ruling, the Court expandedthe government’s role in regulating the physi-


but that the company had also made campaigncontributions to politicians who could be in-fluential in getting such mandates passed. Fur-thermore, some legislators were clearly support-ing a mandate so that the federal government,which helps pay for mandatory childhood vac-cines, would pick up at least part of the tab forstate vaccination programs.

Other significant developments include anincreased effort on the part of legislatures tograpple with how to solve the organ shortageand the ethics of stem-cell research. It is inter-esting to note how different the approaches canbe from state to state.

THE RIGHTS OF MATURINGINDIVIDUALS AND THEIR PARENTS

PRE-BIRTH (ABORTION, FETUSES,EMBRYOS, AND STEM CELLS)

Abortion is clearly on the minds of U.S. law-makers and courts. There has been a staggeringsurge in abortion-related legislation introducedin this legislative session, and at this writingthe U.S. Supreme Court has just handed downits ruling in Gonzales v. Carhart.

Most of the legislative measures listed be-low are considered “anti-abortion” measures,but please note that there were almost as manytypically called “pro-choice” measures intro-duced. Many pro-choice measures aren’t listedbecause they involve funding educational pro-grams and access to medical services for poorwomen. Such measures are certainly of inter-est, but, because of sheer volume, this reportfocuses only on bills that either curtail or in-crease rights independent of financial ability topay.

It is worth paying careful attention to theterms used in each of the bills. For example,bills defining personhood at fertilization could,in addition to affecting abortion rights, poten-tially also lead to the prohibition of certain con-traceptives and/or infertility treatments. Andbills banning cloning could, in addition to ban-ning cloning for purposes of human reproduc-tion, also ban embryonic stem-cell research in-volving somatic cell nuclear transfer.

Finally, please note that the abortion debateis waged on several fronts, so also see sectionsbelow on “Informed Consent” and “Conscien-tious Objections” for more abortion-relatedcases, laws, and regulations.

Recent Cases, January 2007 - March 2007

*Federal. Although this decision washanded down outside the time frame of the “Le-gal Trends” for the summer issue of JCE, I couldnot let this column go to press without includ-ing the most important abortion decision indecades. On 18 April 2007, the U.S. SupremeCourt handed down its ruling in the combinedcases of Gonzales v. Carhart and Gonzales v.Planned Parenthood. They are cited only by thename of the first case. The Court overturned twocircuit court decisions and found the Partial-Birth Abortion Ban Act of 2003 constitutional.The federal act in question is now the law ofthe land. No state can allow Partial-Birth Abor-tions unless it is to save the life of the womanhaving the procedure.

The Federal Act. The Partial-Birth AbortionBan Act of 2003 is very specific regarding whattype of abortion procedure is prohibited. Notall D&Es are prohibited, only “intact D&Es,” alsoknown as “dilation and extraction,” “D&X,” or“intact D&X.” The act is also very specific aboutthe criteria for violations to exist. The alive fe-tus must have been delivered to the point whereits entire head is outside the body of the mother,or, in the case of a breech presentation, any partof the fetal trunk past the navel is outside themother before it is killed by an overt act of thehealthcare professional doing the abortion. Anyprocedure in which the fetus has not been de-livered to these anatomical benchmarks is notprohibited. Note, since the fetus must be alivewhen it reaches the indicated anatomical land-marks, an intact D&E in which the fetus is deadbefore it reaches these landmarks is not prohib-ited. Further, since the healthcare provider musthave the intention of performing an intact D&E,there is no liability if the procedure acciden-tally becomes an intact D&E. The intention is-sue is a difficult one, because some procedures


are typically followed right from the beginningof the procedure only if an “intact” D&E is in-tended. The act’s language and the Court’s in-terpretation of the act seem to define an “in-tact” D&E as one that has reached the specifiedlandmarks; however, this leaves open the pos-sibility that there is such a thing as what mightbe technically an “intact” D&E that is not ille-gal because the required anatomical benchmarkshave not been reached. Finally, it is importantto note that the act specifically excludes theabortion recipient of any potential liability un-der the act. Partial-Birth Abortion Act of 2003,18 U.S.C. § 1531 (2000 ed., Supp. IV).

The Court’s Majority Opinion. The federalPartial-Birth Abortion Ban Act of 2003 is con-stitutional. The decision was 5 to 4. Justice An-thony Kennedy wrote the opinion joined byChief Justice John Roberts and Justices AntoninScalia, Clarence Thomas, and Samuel Alito. Themajority opinion found that the act is not voidfor vagueness, not invalid on its face, and doesnot impose an undue burden due to over-breadth. This is the first time since Roe v. Wadethat the Court has upheld a restriction on abor-tion that does not include an exception for thehealth of the mother. The major significance ofthis ruling is the deference it shows legislativeaction. The opinion states:

We assume the following principles forthe purposes of this opinion. Before viabil-ity, a State may not prohibit any women frommaking the ultimate decision to terminateher pregnancy. It also may not impose uponthis right an undue burden, which exists ifa regulations’ purpose or effect is to place asubstantial obstacle in the path of a womanseeking an abortion before the fetus attainsviability. On the other hand, regulationswhich do no more than create a structuralmechanism by which the State, or the par-ent or guardian of a minor, may express pro-found respect for the life of the unborn arepermitted, if they are not a substantial ob-stacle to the woman’s exercise of the rightto choose.

. . .

The fact that a law which serves a valid pur-pose, one not designed to strike at the rightitself, has the incidental effect of making itmore difficult or more expensive to procurean abortion cannot be enough to invalidateit.

. . .

Where it has a rational basis to act, and itdoes not impose an undue burden, the Statemay use its regulatory power to bar certainprocedures and substitute others, all in fur-therance of its legitimate interests in regu-lating the medical profession in order topromote respect for life, including life of theunborn.

. . .

Considerations of marginal safety, includ-ing balance of risks, are within the legisla-tive competence when the regulation is ra-tional and in pursuit of legitimate ends. [Ci-tations and internal quotation marks omit-ted.]

In addition to a clear deference to legislativeaction, the majority opinion also shows a lackof deference to individual healthcare providersand their ability to judge what is in the best in-terest of patients.

The Court’s Dissenting Opinion. Justice RuthBader Ginsburg wrote a dissenting opinion inwhich Justices John Stevens, David Souter, andStephen Breyer joined. Those dissenting wouldhave found the act unconstitutional. The opin-ion criticizes the majority for relying on “ratio-nal grounds” for upholding state action whenin earlier cases the Court has used the standardof “heightened scrutiny.” They also object to themajority’s deviation from Casey. Planned Par-enthood of Southeastern Pa. v. Casey, 505 U.S.833 (1992). In that case, the Court ruled that“state regulation of access to abortion proce-


dures, even after viability, must protect thehealth of the woman” (internal quotation marksomitted). The dissenters argue that the majori-ty’s deference to the legislature in overridingconstitutional rights deteriorates the gains U.S.society has made in recognizing women as pro-tected by that Constitution and as individualswith the full rights of citizenship.

There was a time, not so long ago, whenwomen were regarded as the center of homeand family life, with attendant special re-sponsibilities that precluded full and inde-pendent legal status under the Constitution.Those views, this Court made clear in Casey,are no longer consistent with our under-standing of the family, the individual, or theConstitution. Women, it is now acknowl-edged, have the talent, capacity, and rightto participate equally in the economic andsocial life of the Nation. Their ability to re-alize their full potential, the Court recog-nized, is intimately connected to their abil-ity to control their reproductive lives. Thus,legal challenges to undue restrictions onabortion procedures do not seek to vindi-cate some generalized notion of privacy;rather, they center on a woman’s autonomyto determine her life course, and thus toenjoy equal citizenship stature.

In keeping with this comprehension ofthe right to reproductive choice, the Courthas consistently required that laws regulat-ing abortion, at any stage of pregnancy andin all cases, safeguard a woman’s health.[Citations and internal quotation marksomitted.]

The As-Applied Challenge. The majorityopinion states the act would be unconstitutionalif it exposed women to significant health risks.The Court did not find that a prohibition againstintact D&Es created such a risk, but it did ac-knowledge that “preenforcement, as-appliedchallenges to the Act,” could be filed as a properway to protect the health of women should therebe “discrete and well defined instances a par-ticular condition has or is likely to occur” where

use of intact D&E must be used to protect thehealth of the mother. While the majority opin-ion allows for such challenges, it is unclear whatsuch a lawsuit would look like. The dissent asks,“Surely the Court cannot mean that no suit maybe brought until a woman’s health is immedi-ately jeopardized by the ban on intact D&E.”Gonzales v. Carhart, 550 U.S. ___(2007). I’m surethe answer will be forthcoming soon, since law-suits challenging the act on as-applied basis areundoubtedly already being planned.

Arizona. On 23 January 2007, a state courtof appeals unanimously upheld a lower courtruling that the state county sheriff’s policy ofonly transporting female inmates to medicalfacilities for abortions when medically neces-sary was an unconstitutional burden on the rightto an abortion. Defendants are seeking an ap-peal. Doe v. Arpaio, Ariz. S. Ct., 1 CA-CV 05-0835; 2007 Ariz. App., LEXIS 8 (23 Jan. 2007).

*California. A unanimous California Courtof Appeals affirmed the lower court’s ruling asto the validity of California’s Proposition 71.Proposition 71, approved by California ballotinitiative during the 2004 general election, pro-vides $3 billion in funding for stem-cell researchover 10 years. California Family Bioethics Coun-cil v. Independent Citizen’s Oversight Commit-tee, Cal. Ct. App., No. A114195, 2/26/07;People’s Advocate v. Independent Citizens Over-sight Committee, Cal. Ct. App., No. A114282,2/26/07. Plaintiffs are planning to appeal.Tansey, Bernadette, “Court Backs Stem CellFunding Plan: Research Money From Prop. 71Still Held Up Pending Appeals,” San FranciscoChronicle, 22 April 2007; http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/04/22/MNGH9IDLVO1.DTL, accessed 23 April 2007.

*Kansas. Potential action. State AttorneyGeneral Phill Kline has twice tried to file chargesagainst physician George Tiller for allegedlyperforming 15 illegal late-term abortions in2003. Each time, the criminal charges werethrown out by Sedgwick County, Kansas, Dis-trict Judge Paul Clark on jurisdictional grounds,that is, Kline doesn’t have authority to file suchcharges. Kline promises to continue to investi-gate. Phill Kline lost the Kansas Attorney Gen-


eral race in November 2006 to Democrat PaulMorrison, a vehement supporter of abortion.http://www.lifesite.net/ldn/2006/nov/06110904.html, accessed 11 April 2007. See related legis-lation under Kansas below.

*Michigan. The Michigan Civil Rights Com-mission issued a declaratory ruling in August2006 that prescription contraceptives must becovered by employers who provide prescriptiondrug coverage in their health plans. Not to doso is a violation of the Elliott-Larsen Civil RightsAct, which prohibits sex-based discrimination.The ruling allows an exception for nonprofit“religious employers.” Michigan Civil RightsCommission, Declaratory Ruling on Contracep-tive Equity, 21 August 2006 at http://www.chetlyzarko.com/Declaratory%20Ruling %207-26-06.pdf, accessed 25 January 2007.

New Jersey. A suit was filed in State Supe-rior Court of Essex County against the Metro-politan Medical Associates in Englewood byRasheedah Dinkins who alleges that clinic phy-sicians provided “negligent, careless and reck-less care” because of alleged complications dueto the abortion. After the procedure, she feltpains and went to Newark Beth Israel MedicalCenter where she was unconscious for morethan three weeks, had two strokes, and under-went a hysterectomy. Rasheedah Dinkins v.Metropolitan Medical Associates, MetropolitanSurgical Associates, Inc., Keith Gresham, M.D.,Nicholas Kotopoulos, M.D., Esx. L-1688-07 (1March 2007). Based on a complaint filed withthe New Jersey Department of Health and Se-nior Services by Newark Beth Israel MedicalCenter, the abortion clinic was closed after aninspection revealed several health and recordkeeping violations that will need to be correctedbefore the clinic can reopen. R. Padawer, “FromAbortion to 4-Week Coma, Case Triggered Probe,Closing of Englewood Clinic,” The Record, 1March 2007, pg. A01, accessed 27 April 2007.

Recent Laws and Regulations,January - March 2007

Alabama. Three bills were introduced in thestate legislature to restrict abortions. One wasintroduced that defines personhood beginning

at fertilization. A second, also in the state house,criminalizes abortions with the exception ofcases where the woman’s life is in danger orcases of rape or incest. A third, introduced inthe state senate, would prohibit abortions ex-cept for the “extreme case where the pregnancythreatens the life of the mother.” H.B. 128, H.B.329, S.B. 59, 2007 Gen. Assem., Reg. Sess. (Ala.2007).

A bill was introduced in the state house toprohibit the cloning of human beings. The Re-generative Medicine Enhancement Act wouldalso provide for penalties and civil fines for vio-lations. H.B. 28, 2007 Leg., Reg. Sess. (Ala.2007).

Arizona. A bill was introduced in the statehouse making appropriations to the Departmentof Health Services for a regenerative tissue re-pository and for research in regenerative medi-cine involving non-embryonic stem-cell re-search. H.B. 2770, 48th Leg., 1st Reg. Sess. (Ariz.2007).

Arkansas. A bill was introduced in the statehouse that would protect embryonic stem-cellresearch, including somatic cell nuclear trans-fer. The Regenerative Medicine EnhancementAct also bans human reproductive cloning. H.B.2806, 86th Gen. Assem., Reg. Sess. (Ark. 2007).

California. The state assembly passed a billthat involves significant ongoing funding fromthe California General Fund in the form of grantsto umbilical cord blood banks. A.B. 34, 2007-2008 Leg., Reg. Sess. (Cal. 2007).

Colorado. Two bills were introduced in thestate senate dealing with the personhood statusof a fetus. One would make abortions criminalunless necessary to prevent the death of themother. The other amends the state criminalcode to define the fetus as a separate victim apartfrom its mother in homicide cases. S.B. 143, S.B.71, 66th Gen. Assem., Reg. Sess. (Colo. 2007).

Connecticut. A bill was introduced in thestate house to amend the state criminal code toinclude “unborn person” as a person under thecode. H.B. 6067, Gen. Assem., Jan. Sess. (Conn.2007).

Delaware. Two bills were introduced in thestate legislature to encourage certain stem-cellresearch within ethical guidelines. The house


bill would allow research on donated embryosunder 14 weeks old, ban human reproductivecloning, and establish a committee to developand adopt guidelines for publicly funded re-search involving the derivation or use of hu-man embryonic stem cells. The senate bill fo-cuses on banning human reproductive cloning.H.B. 76, S.B. 5, 144th Gen. Assem., Reg. Sess.(Del. 2007).

Florida. Two virtually identical bills wereintroduced in the state legislature to amend thestate criminal code to define an “unborn child”as a separate victim from the pregnant womancarrying the child. H.B. 71, S.B. 234, 109th Gen.Assem., Reg. Sess. (Fla. 2007).

Two virtually identical bills were introducedin the state legislature to establish the Stem CellResearch and Ethics Advisory Council. The“Florida Hope Offered through Principled, Ethi-cally Sound Stem Cell Research Act” providesfor both a donated funds program and a researchgrant program from the Biomedical ResearchTrust Fund. Funding is limited to adult stemcells, amniotic, cord blood, and placental stemcells and does not include embryonic stem cells.H.B. 1065, S.B. 2496, 2007 Leg., Reg. Sess. (Fla.2007).

Two virtually identical bills were introducedin the state legislature to allow funds from theBiomedical Research Trust Fund to be used onembryonic stem cells. H.B. 555, S.B. 0750, 2007Leg., Reg. Sess. (Fla. 2007).

Georgia. A state house resolution was in-troduced in the state house to place on the No-vember 2008 ballot an initiative that would de-fine personhood as beginning at fertilization.There is no language in the bill indicating ex-ceptions when an abortion might be permitted.H.R. 536, 149th Gen. Assem., Reg. Sess. (Ga.2007).

A bill was introduced in the state house thatwould impose a near total criminal ban on abor-tion. The bill provides for an exception if a phy-sician makes a medically justified effort to savethe lives of both the mother and the fetus andthe fetus does not survive. The bill also pro-vides for a penalty of life in prison or the deathpenalty for both women and doctors found in

violation of the law. H.B. 1, 149th Gen. Assem.,Reg. Sess. (Ga. 2007).

A bill was introduced in the state senate toestablish the Newborn Umbilical Cord BloodBank to encourage non-embryonic stem-cellresearch. S.B. 148, 149th Gen. Assem., Reg. Sess.(Ga. 2007).

Hawaii. Two virtually identical bills wereintroduced in the state legislature that wouldban partial-birth abortions. H.B. 787, S.B. 129,S.B. 129, H.B. 787, 24th Leg., Reg. Sess. (Haw.2007). (The bills are no longer necessary sincethe U.S. Supreme Court in Gonzales v. Carhartupheld the federal ban on partial-birth abor-tions.)

Two bills were introduced in the state sen-ate to amend the state criminal code to considerthe “unborn child” as a separate victim in anassault against a pregnant woman. S.B. 206, S.B.1903, 24th Leg., Reg. Sess. (Haw. 2007).

Two bills were introduced in the state housethat would permit all forms of stem-cell re-search. The state house version has been re-ferred to committee. The senate version has beendeferred until next year’s session. H.B. 364, H.B.1261, 24th Leg., Reg. Sess. (Haw. 2007).

*Illinois. Two bills were introduced in thestate house in December 2006: The first wouldallocate $25 million annually for the next fiveyears to stem-cell research, including embryonicstem-cell research. The second would ban hu-man cloning and the sale of human embryos.These bills died at the end of the session. H.B.1039, H.B. 1038, 94th Gen. Assem., Reg. Sess.(Ill. 2006).

A bill was introduced in the state senate thatwould ban abortions at as early as 12 weeks.There is no exception for protecting the mother’slife or health after the 12th week of pregnancy.S.B. 100, 95th Gen. Assem., Reg. Sess. (Ill. 2007).

A bill was introduced in the state house toallow pharmacies to dispense emergency con-traceptives to women without a prescription.H.B. 1077, 95th Gen. Assem., Reg. Sess. (Ill.2007).

Kansas. Two bills were introduced in thestate legislature to amend the definition of per-son for purposes of the criminal code to include


“unborn child.” H.B. 2006, S.B. 2, 82nd Leg.,Reg. Sess. (Kan. 2007).

The Kansas House Federal and State AffairsCommittee voted to approve a resolution thatwould force Attorney General Paul Morrison toreinstate the criminal charges against physicianGeorge Tiller for allegedly performing illegallate-term abortions. See original legal actionreported above. H.R. 6018, 82nd Leg., Reg. Sess.(Kan. 2007).

Five bills were introduced in the state housethat relate to stem-cell research. The first wouldban somatic cell nuclear transfer. The secondwould ban the funding of embryonic stem-cellresearch. The third would ban the creation ofchimeras. The fourth encourages non-embry-onic stem-cell research by offering a 50 percenttax credit for donations to the adult stem-cellresearch fund. And the fifth would ban clon-ing. H.B. 2252, H.B. 2255, H.B. 2403, H.B. 2291,H.B. 2098, 82nd Leg., Reg. Sess. (Kan. 2007).

Kentucky. Two abortion-related bills wereintroduced in the state legislature. A house billwould “ban state constitutional protection fora woman’s right to choose.” A senate bill wouldamend existing abortion waiting requirementsto require a 24-hour period between when awoman receives state-mandated informationand performance of the abortion procedure. H.B.251, S.B. 179, 2007 Leg., Reg. Sess. (Ky. 2007).

Massachusetts. Two bills were introducedin the state legislature to repeal a pre-Roe v.Wade criminal ban on abortion. H.B., 173, S.B.831, 185th Gen. Assem., Reg. Sess. (Mass. 2007).

*Michigan. Four bills were introduced inthe state legislature to codify the above de-scribed Michigan Civil Rights Commission’s de-claratory ruling into law. H.B 4295, H.B. 4296,S.B. 41, S.B. 42, 94th Leg., Reg. Sess. (Mich.2007).

A bill introduced in the state senate wouldallow for embryonic stem-cell research byamending the current state code to allow theuse of human embryos for non-therapeutic re-search. S.B. 52, 94th Leg., Reg. Sess. (Mich.2007).

Minnesota. Three bills were introduced inthe state legislature to place an initiative on theballot for November 2008 to amend the state

constitutional provision protecting a woman’sright to choose an abortion. S.B. 1235, S.B. 1234,H.B. 2378, 85th Gen. Assem., Reg. Sess. (Minn.2007).

Mississippi. A bill was signed into law bythe governor that would implement a near totalban on abortions in Mississippi in the event thatRoe v. Wade is ever overturned by the U.S. Su-preme Court. The law would only allow abor-tions in the case of rape, incest, or to preventthe mother’s death. S.B. 2391, 2007 Reg. Sess.(Miss. 2007).

Missouri. A bill was introduced in the statehouse to ban abortions in all cases except whenthe woman is in danger of death. H.B. 990, 94thGen. Assem., Reg. Sess. (Mo. 2007).

Nevada. A bill was introduced in the statesenate to amend the state criminal code to in-clude “unborn child” as a separate victim apartfrom the pregnant woman. S.B. 299, 74th Gen.Assem., Reg. Sess. (Nev. 2007).

New Hampshire. A bill was introduced inthe state house to amend the state homicidecode to include “unborn child” as a possiblevictim. H.B. 177, 160th Gen. Assem., Reg. Sess.(N.H. 2007).

New York. Two bills were introduced in thestate legislature to amend the criminal code toinclude “unborn child at any stage of gestation”in the definition of person. S.B. 3117, A.B. 5777,230th Gen. Assem., Reg. Sess. N.Y. 2007).

Three bills were introduced in the state leg-islature that would allow nurses and pharma-cists to dispense emergency contraceptiveswithout a prescription. S.B. 3579, S.B. 1940,A.B. 5569, 230th Gen. Assem., Reg. Sess. (N.Y.2007).

A bill was introduced in the state senateauthorizing stem-cell research, requiring in-formed consent, and prohibiting human repro-ductive cloning. S.B. 01257, 230th Reg. Sess.(N.Y. 2007).

A bill was introduced in the state senate tocreate the New York Stem Cell Research Insti-tute. S.B. 02923, 230th Reg. Sess. (N.Y. 2007).

North Carolina. Two bills were introducedin the state legislature to amend the criminalcode of North Carolina to include “unbornchild” as a separate victim than the pregnant


woman carrying the child. H.B. 263, S.B. 295,148th Gen. Assem., 2007 Sess. (N.C. 2007).

A bill was introduced in the state senate thatwould appropriate $8 million to the Wake For-est Soldier Regenerative Medicine Institute forstem-cell research. S.B. 715, 148th Gen. Assem.,2007 Sess. (N.C. 2007).

North Dakota. A bill was introduced in thestate house to impose a total ban on abortions.H.B. 1489, 61st Gen. Assem., Reg. Sess. (N.D.2007). Another bill was introduced that wouldimpose a similar ban but allows an exception ifthe woman’s life is in danger. H.B. 1466, 61stGen. Assem., Reg. Sess. (N.D. 2007).

A bill was introduced in the state senate thatdefines personhood as beginning at fertilization.S.B. 2400, 61st Gen. Assem., Reg. Sess. (N.D.2007).

A bill was introduced in the state house thatbans abortions except if the woman’s life is indanger but would only go into effect if Roe v.Wade is overturned by the U.S. Supreme Court.H.B. 1466, 61st Gen. Assem., Reg. Sess. (N.D.2007).

Oklahoma. A bill was introduced in the statehouse that would make the state’s pre-Roe v.Wade abortion ban enforceable if the case isoverturned. In the meantime it would ban allabortions unless the mother’s life is in danger.H.B. 1014, 51st Gen. Assem., Reg. Sess. (Okla.2007).

Two bills were introduced in the state legis-lature that prohibit the distribution of mifepris-tone, a medical abortion pill. S.B. 715, H.B.2181, 51st Gen. Assem., Reg. Sess. (Okla. 2007).

A bill was introduced in the state senate toallow government officials to search offices andmedical files of abortion providers withoutcause, warrant, or announcement. S.B. 617, 51stGen. Assem., Reg. Sess. (Okla. 2007).

A joint resolution was introduced in thestate legislature that would allow researchersto perform any stem-cell research permittedunder federal law, but the measure also banscloning. H.J.R. 1010, 51st Leg., 1st Sess. (Okla.2007).

Oregon. Three bills were introduced in thestate house to amend the state criminal codedefinition of a human being to include “unborn

child.” H.B. 3272, H.B. 3240, H.B. 2802, 74thLeg. Assem., Reg. Sess. (Or. 2007).

The state house passed a bill amending ex-isting emergency room law to allow dispensingemergency contraceptives to women over 18without a prescription. H.B. 2154, 74th Leg.Assem., Reg. Sess. (Or. 2007).

A bill was introduced to establish the Hu-man Stem Cell Research Committee and theHuman Stem Cell Research Fund. The commit-tee would create guidelines for stem-cell re-search, while the fund would obtain public andprivate funds for the purpose of dispensinggrants. H.B. 2801, 74th Leg. Assem., Reg. Sess.(Or. 2007).

Two bills were introduced in the state housethat would make human cloning a crime. H.B.2662, H.B. 2929, 74th Leg. Assem., Reg. Sess.(Or. 2007).

Pennsylvania. A bill was introduced in thestate senate to amend the state criminal code toinclude “unborn child” as part of the definitionof person. S.B. 589, 191st Gen. Assem., Reg.Sess. (Pa. 2007).

Rhode Island. Two bills were introduced inthe state house to amend the state criminal codeto include “unborn child” in the definition of“another.” H.B. 5261, H.B. 5234, Gen. Assem.,Jan. Sess. (R.I. 2007).

Two bills were introduced in the state legis-lature that would make the protections underRoe v. Wade permanent. S.B. 119, H.B. 5462.Gen. Assem., Jan. Sess. (R.I. 2007).

South Carolina. Four bills were introducedin the state legislature defining personhood asbeginning at fertilization. H.B. 3284, H.B. 3697,S.B. 313, S.B. 3815, 117th Gen. Assem., 1st Reg.Sess. (S.C. 2007).

Two bills were introduced in the state housethat would define person to include “unbornchild” under the state’s civil and criminal codes.H.B. 3019 (civil), H.B. 3171 (criminal), 117thGen. Assem., 1st Reg. Sess. (S.C. 2007).

A bill was introduced in the state senate toallow embryonic stem-cell research but banningthe buying and selling of pre-implantation em-bryos. The Biotechnology Act of 2008 wouldalso ban human cloning. S.B. 0173, 117th Gen.Assem., 1st Reg. Sess. (S.C. 2007).


South Dakota. A bill passed the state housethat would impose a ban on abortions exceptwhen the mother’s life is in danger or in casesof incest or rape. If enacted by the state senateand signed by the governor, the measure willbe automatically included on the 2008 generalelection ballot. H.B. 1293, 82nd Leg. Sess. (S.D.2007).

Texas. Two bills were introduced in the statelegislature that ban abortions unless necessaryto prevent a woman from dying. This law wouldtake effect if Roe v. Wade is overturned by theSupreme Court. H.B. 175, S.B. 186, 80th Leg.(Tex. 2007).

Five bills and a resolution were introducedin the state legislature relating to stem-cell re-search. Two identical bills ban human cloningand other uses of human tissue by institutes ofhigher education, but do not restrict nucleartransplantation to develop therapies. Anotheralso bans cloning more generally. A fourth billwould create a program to provide grants andloans to institutions of higher education andadvanced medical research facilities to conductstem-cell research. And a house bill would es-tablish the Texas Institute of Regenerative Medi-cine, authorize the issuance of bonds for thepurposes of the institute, and prohibit the leg-islature from prohibiting stem-cell research.H.B. 1829, S.B. 56, H.B. 2704, H.B. 1486, H.B.537, H.J.R. 43, 80th Leg. (Tex. 2007).

Utah. A bill was introduced in the statehouse to ban all abortions except if the woman’slife is in danger, certain limited health circum-stances, and if the pregnancy is a result of rapeor incest. Law becomes effective if Roe v. Wadeis overruled. H.B. 235, 57th Leg., Gen. Sess.(Utah 2007).

Virginia. A bill was introduced in the statehouse that would ban abortions except to pre-vent the death of the mother. The law would gointo effect if the U.S. Supreme Court overturnsRoe v. Wade. H.B. 2124, 2007 Gen. Assem., Reg.Sess. (Va. 2007).

A bill was introduced in the state house thatdefines personhood as beginning at fertilization.H.B. 2797, 2007 Gen. Assem., Reg. Sess. (Pa.2007).

Two bills were introduced in the state housethat would amend homicide laws to allow fe-tuses or “unborn children” to be considered vic-tims of a crime separate of the pregnant womenwho carry them. H.B. 1631, H.B. 2532, 2007 Gen.Assem., Reg. Sess. (Va. 2007).

Five bills were introduced in the state houseregarding stem-cell research. Two would allowembryonic stem-cell research within the guide-lines established by an oversight committee es-tablished by the bills. A third would assure re-turns on venture capital investments in biotech-nology. A fourth provides funding for stem-cellresearch. And a fifth offers a tax credit for con-tributions to stem-cell research. H.B. 2857, H.B.1768, H.B. 1697, H.B. 1939, H.B. 2820, 2007Gen. Assem., Reg. Sess. (Va. 2007).

Washington. Two bills were introduced inthe state house relating to stem-cell research.One creates a human stem-cell research advi-sory committee and establishes funding forstem-cell research. Another would restrict fund-ing to research not involving somatic cellnuclear transfer. H.B. 1163, H.B. 173, 60th Leg.,Reg. Sess. (Wash. 2007).

West Virginia. Three bills were introducedin the state legislature to ban abortions. Onewould ban all abortions with no health excep-tion. The other two would ban abortions as earlyas 12 weeks with no exceptions. H.B. 2036 (gen-eral ban), H.B. 3058, S.B. 695 (after 12 weeks),78th Leg., Reg. Sess. (W. Va. 2007).

A bill was introduced in the state house toinclude “unborn child” as part of the definitionof “human being” for purpose of the state ho-micide laws. H.B. 2140, 78th Leg., Reg. Sess.(W. Va. 2007).

Wyoming. A bill was introduced in the statesenate that would amend state homicide lawsto include an “unborn child” as a separate vic-tim from the pregnant woman carrying the child.S.B. 118, 59th Leg., Reg. Sess. (Wyo. 2007).

Interesting Developmentsin Other Countries

Mexico. Lawmakers in Mexico City are con-sidering legalizing abortions within the first


three months of pregnancy. Hector Tobar,“Mexico City Lawmakers Begin Hearings on Billthat Would Allow Abortion During First ThreeMonths’ Gestation,” Los Angeles Times, 29March 2007.

Rwanda. Lawmakers are considering a mea-sure that would limit couples to three children.“Rwandan Lawmakers Drafting Measure Thatwould Limit Couples to Three Children, Offi-cial Says,” Reuters South Africa, 15 February2007.

AFTER BIRTH (PREMATURE INFANTS,NEWBORNS, AND CHILDREN)

The battle over abortion continues to causefluctuations in the specific requirements forparental consent and notification laws. It isworth asking whether these debates adequatelyconsider the best interests of the young womenaffected. More than half of the U.S. states re-quire parental consent before a minor can get atattoo or a body piercing. In some of those states,no such consent is required for an abortion. Isthere, or can there be, any consistent criteriafor determining when a minor is old enough tomake decisions on his or her own? Should theseriousness, the inherent health risk, or the per-manence of the decision play a role in deter-mining whether notice or consent is required?If yes, then do these factors make notice andconsent requirements more or less reasonable?


*Illinois. The Illinois Supreme Court issuedrules necessary to implement the state ParentalNotice of Abortion Act. Ill. S. Ct. M.R. 21173 inJanuary. But the act still remains unenforceable.The state’s attorney general has filed a motionto have those rules put in place, but the matteris still pending.

*Missouri. Case pending. In Planned Par-enthood of Kansas and Mid-Missouri, Inc., etal. v. Jeremiah W. (Jay) Nixon, et al., the Mis-souri Supreme Court heard arguments challeng-ing the Missouri parental consent law that givesparents and prosecutors the right to sue adultswho help minors get an abortion without com-plying with state parental consent laws, which

require either direct parental consent or courtapproval. The challenge is based on whetherthe “aid and assist” language in the law includesspeech, and therefore is a violation of state-pro-tected right to free speech. The case was heard15 November 2006. A decision is expected atsome point before the end of the summer. Plan-ned Parenthood of Kansas and Mid-Missouri,Inc., et al. v. Jeremiah W. (Jay) Nixon, et al., No.SC87321 (Motion filed 13 November 2006).


Connecticut. A bill was introduced in thestate house that mandates parental notice priorto a minor obtaining an abortion. H.B. 5807, Gen.Assem., Jan. Sess. (Conn. 2007).

Georgia. A bill was introduced in the statehouse that would require parental notice beforeminors could receive contraception. H.B. 526,149th Gen. Assem., Reg. Sess. (Ga. 2007).

Hawaii. Three bills were introduced in thestate legislature requiring parental notice, andone requiring parental consent before a minorcan obtain an abortion. H.B. 786, S.B. 1904, S.B.205, H.B. 788, 24th Leg., Reg. Sess. (Haw. 2007).

Missouri. A bill was introduced in the statehouse to require parental consent for access tocontraceptives. H.B. 617, 94th Gen. Assem., Reg.Sess. (Mo. 2007).

New Hampshire. A bill passed the statehouse and is now before the state senate to re-peal existing parental notification laws. H.B.184, 160th Gen. Assem., Reg. Sess. (N.H. 2007).

New York. Two abortion consent-relatedbills were introduced in the state assembly. Onewould require parental notice and the otherparental consent prior to a minor receiving anabortion. A.B. 2560, A.B. 3217, 2007-2008 Gen.Assem., Reg. Sess. (N.Y. 2007).

North Carolina. Two abortion consent-re-lated bills were introduced in the state legisla-ture. The house bill would require parental no-tice when minors were granted access to con-traceptives. The senate bill would require thatparental consent to an abortion be either per-sonally signed or notarized. H.B. 103, S.B. 481,148th Gen. Assem., Reg. Sess. (N.C. 2007).


Oregon. A bill was introduced in the statehouse to require parental notice prior to a mi-nor receiving an abortion. H.B. 3234, 74th Gen.Assem., Reg. Sess. (Ore. 2007).

Tennessee. Two bills were introduced in thestate legislature to require parental notificationwhen a minor seeks an abortion. H.B. 1441, S.B.1795, 105th Gen. Assem., Reg. Sess. (Tenn.2007).

Vermont. A bill was introduced in the statehouse to mandate parental notice before a mi-nor receives an abortion. H.B. 473, 69th Leg.,Reg. Sess. (Vt. 2007).

Washington. A bill was introduced in thestate house that would mandate parental noticebefore a minor could receive an abortion. H.B.1321, 60th Leg., Reg. Sess. (Wash. 2007).

West Virginia. Seven bills were introducedto modify parental notice laws. Two eliminatethe option that parental notice can be given byphone and increase the waiting period betweennotice and the abortion procedure to 48 hours.A third requires that parental notice be nota-rized. A fourth requires written parental con-sent. A fifth allows a physician bypass provi-sion but requires 48 hours notice. And twoeliminate the physician bypass option andmodify the time in which a judge must rule if aminor seeks waiver of the notice requirement— one lengthens the period from 24 hours tothree days, the other lengthens the period to fivedays. H.B. 3128, S.B. 544 (48 hour prior notice;no phone notice); H.B. 3187 (notarized paren-tal notice); H.B. 2219 (written parental consent);H.B. 2037 (allows a physician bypass 48 hournotice); H.B. 2151 (3 days), S.B. 72 (5 days), 241678th Leg., Reg. Sess. (W. Va. 2007).

VACCINES

Mandatory childhood vaccine is one of thoseissues in which the rights of parents and thestate sometimes collide. There is a growing gen-eral mistrust of both pharmaceutical companiesand the government, leading some parents toquestion their motives when issues involvingmandatory childhood vaccine are raised. Someparents object on religious grounds, some onmoral grounds, some because they see the spe-

cific vaccination program under discussion asa waste of money, some because they believethe drug hasn’t been tested enough, and othersbecause they simply feel it is their prerogativeas parents to decide. All these issues are beingraised with respect to mandating the HPV vac-cine, and many legislators who originallyrushed to introduce bills to mandate the vac-cine are now having second thoughts.


Federal. The Centers for Disease Control andPrevention (CDC) adopted the recommendationof its Advisory Committee on ImmunizationPractices to routinely give the human papillo-mavirus (HPV) vaccine to girls/women betweenthe ages of nine and 26. John Abramson, thechair of this committee, has stated publicly thathe does not support mandating the vaccine. Seehttp://www.cdc.gov/mmwr/preview/mmwrhtml/rr56e312a1.htm, accessed 27 April 2007;Gregory Lopes, “CDC Doctor Opposes Law forVaccine,” Washington Times, 27 February 2007,http://www.washtimes.com/business/20070226-115014-2031r.htm, accessed 27 April 2007.

In the U.S. House of Representatives a billwas introduced that would prohibit federalfunds to be used by states who make the HPVvaccine mandatory. H.R. 1153, 110th Cong. (1stSess. 2007).

Arkansas. On 26 March a state senate com-mittee voted down a bill that would have re-stricted the amount of mercury allowed in vac-cines. S.B. 911, 86th Gen. Assem., Reg. Sess.(Ark 2007).

California. A bill was introduced in the stateassembly that would require all girls enteringthe sixth grade to receive the HPV vaccine. Thebill includes an opt-out provision. A.B. 16, 2007-2008 Leg., Reg. Sess. (Cal. 2007).

Colorado. The state house committee ap-proved a bill that would require middle schoolgirls to receive the HPV vaccine. The bill in-cludes an opt-out provision and requires healthinsurers to cover the cost of HPV vaccines. H.B.1301, 66th Gen. Assem., 1st Reg. Sess. (Colo.2007).


Connecticut. Three HPV-related bills wereintroduced in the state legislature. One wouldrequire all 12-year-old girls to be vaccinated. Asecond would require the state’s insurance pro-gram to cover HPV vaccines for low-incomefamilies. And a third would require the healthdepartment to develop HPV immunization stan-dards. H.B. 6085, H.B. 5485, S.B. 86, 2007 Gen.Assem., Jan. Sess. (Conn. 2007).

District of Columbia. The city council votedto preliminarily approve a bill that would re-quire girls entering the sixth grade to receivethe HPV vaccine. The provision has an opt-outprovision. B17-0030, 17th Council Period (D.C.2007).

Florida. A bill was introduced in the statehouse to require all girls entering the sixth gradeto receive the HPV vaccine. There is an opt-outprovision. H.B. 561, 2007 Leg., Reg. Sess. (Fla.2007).

Georgia. A bill was introduced in the statehouse to require all girls entering the sixth gradeto receive the HPV vaccine. There is an opt-outprovision. 2007. S.B. 155, 149th Gen. Assem.,Reg. Sess. (Ga. 2007).

Indiana. A bill was signed by the governoron 26 March 2007 that requires school systemsto report the number of girls who have receivedthe HPV vaccine. S.B. 327, 115th Gen. Assem.,1st Reg. Sess. (Ind. 2007).

Kansas. A bill was introduced in the statehouse that would require all girls entering thesixth grade in the state’s public schools to re-ceive an HPV vaccine. The bill includes an opt-out provision. H.B. 2227, 82nd Leg., Reg. Sess.(Kan. 2007).

Kentucky. The state house passed a bill thatwould require middle school girls to receive theHPV vaccine. The bill includes an opt-out pro-vision. H.B. 345, 2007 Leg., Reg. Sess. (Ky. 2007).

Maryland. A bill was signed by the gover-nor that would establish a HPV vaccine subcom-mittee in the Cervical Cancer Committee of theMaryland Comprehensive Cancer Control Plan;provide for the membership and duties of theHPV vaccine subcommittee; and require theHPV vaccine subcommittee to submit an annualreport to the Cervical Cancer Committee by 1

September 2007. H.B. 1049, 2007 Gen. Assem.,423rd Sess. (Md. 2007).

Massachusetts. The governor announced aplan that would make the HPV vaccine bothoptional and fully funded by the state as part ofthis year’s budget proposal; http://www.medicalnewstoday.com/medicalnews.php?newsid=64304, accessed 27 April 2007.

Michigan. Two bills were introduced in thestate house dealing with HPV vaccines. Onewould require parents to provide school offi-cials with a statement from a physician indi-cating whether or not a sixth grade girl has re-ceived an HPV vaccine. The other would man-date the vaccine, but also includes an opt-outprovision. H.B. 4164, H.B. 4140, 94th Leg., Reg.Sess. (Mich. 2007).

Minnesota. Lawmakers in both chambersintroduced bills to mandate the HPV vaccinefor all girls ages 12 and older. Both bills haveopt-out provisions. H.B. 530, S.B. 243, 85th Leg.,Reg. Sess. (Minn. 2007).

Nevada. A bill was introduced in the statesenate that would require insurance companiesto cover the cost of HPV vaccinations. S.B. 409,74th Gen. Assem., Reg. Sess. (Nev. 2007).

New Mexico. A bill was passed by the statelegislature that would require all girls enteringthe sixth grade to receive an HPV vaccine, butthe bill was “pocket vetoed” by GovernorRichardson on 17 March 2007. S.B. 1174, 48thLeg., 1st Sess. (N.M. 2007).

New York. A bill was introduced in the statesenate that would require the HPV vaccine forfemales born after 1 January 1996. The bill in-cludes an opt-out provision. S.B. 4394, 2007Leg., 230th Reg. Sess. (N.Y. 2007).

Ohio. A bill was introduced in the statehouse that would require girls entering sixthgrade to be vaccinated against HPV. The bill hasan opt-out provision. H.B. 81, 127th Gen.Assem., Reg. Sess. (Ohio 2007).

South Dakota. The governor signed into lawa bill that provides $9.2 million to voluntarilyvaccinate at no cost to South Dakota’s femalesbetween the ages of 11 and 18. H.B. 1061, 82ndLeg. Sess. (S.D. 2007); act of 26 March 2007, ch.201, 2007 S.D. Laws (to offer an HPV vaccine


initiative, transfer funds, and declare an emer-gency).

Texas. The governor mandated by executiveorder that all girls entering the sixth grade re-ceive the HPV vaccine, but that order is beingchallenged by the legislature and the Texas At-torney General. Tex. Exec. Order RP65, 2 Feb-ruary, http://www.governor.state.tx.us/divi-sions/press/exorders/rp65, accessed 27 April2007.

Vermont. A bill was introduced in the statehouse that would require girls entering the sixthgrade to be vaccinated against HPV. The bill doesinclude an opt-out provision. H.B. 256, 69thLeg., 2007 Sess. (Vt. 2007).

Virginia. The governor signed into law a billrequiring all sixth grade girls to be vaccinatedagainst HPV. The bill includes an opt-out pro-vision. The bill was chaptered on 11 April 2007.H.B. 2035, 2007 Gen. Assem., Reg. Sess. (Va.2007).

INFORMED CONSENT

There have been many questions of late re-garding the risks and benefits of vaccines andwhether certain vaccines should be mandated,or if just the information parents need to makean informed choice should be mandated. Thosevaccine-related laws are reported here, but abor-tion-related laws dominate the informed con-sent section of this issue of “Legal Trends.”Since the Supreme Court’s decision in Carhart,a proliferation of state laws governing the in-formed consent process can be expected. Stateshave required specific disclosures during theinformed consent process before, but I predictthat they will rely on Carhart to greatly increasetheir interventions in the physician-patient re-lationship, particularly where abortions and endof life decisions are concerned.


Eighth Circuit Court of Appeals. In Plan-ned Parenthood Minn. v. Rounds, the court ofappeals (Minnesota, Nebraska, North Dakota,South Dakota, Eastern and Western Districts ofArkansas, Northern and Southern Districts of

Iowa, Eastern and Western District of Missouri)enjoined the implementation of amendments toan Ohio state abortion law requiring that spe-cial informed consent provisions be met unlessthe abortion is necessary due to medical emer-gency. The special provisions in question re-quire abortion providers to notify patients that“the abortion will terminate the life of a whole,separate, unique, living human being” and tocertify that the pregnant woman has read, andthat the physician believes her to understand,the information imparted. Plaintiffs sought theinjunction, claiming the law compelled provid-ers to articulate the state’s abortion ideology andphilosophy in violation of the First and Four-teenth Amendments. The injunction preventsenforcement of the law while it is adjudicated.The court simultaneously enjoined a similarSouth Dakota law. 467 F.3d 716; 2006 U.S. App.LEXIS 26914 (30 October 2006). The 8th U.S.Circuit Court of Appeals agreed to hear the caseon 11 April 2007.

*Louisiana. In Brown v. Louisiana, State of,the Louisiana Court of Appeals reversed andremanded a trial court’s summary judgment.The court found that a failure to inform a pa-tient of more conservative medical approachesto a hysterectomy could be a violation of in-formed consent, justifying damages for negli-gence. The issue needs to go to a jury and can-not be decided by summary judgment. The casewas returned to the district court for jury selec-tion and awarding of damages. A hearing isscheduled for 29 June 2007. No. 06-709 (La. Ct.App. 2 November 2006).

*Texas. In Gray v. Woodville Health CareCenter, the Court of Appeals of Texas, EighthDistrict, held that a family didn’t have a casefor malpractice or wrongful death. The court didnot discuss informed consent or the meaningof “hospice” care, but analyzed the case purelyalong traditional notions of malpractice. Thefacts, however, clearly indicated a misunder-standing as to the meaning of “hospice” care.The family consented to having the patienttransferred to hospice, but was shocked to findthat the patient died the day after transfer; intheir minds it was negligent for the patient’sphysician to order most treatments stopped in


conjunction with the transfer. 2006 Tex. App.LEXIS 6904 (3 August 2006). Petition for reviewwas denied by Gray v. Evans. 2007 Tex. LEXIS18 (5 January 2007).

A lawsuit was filed alleging that GovernorRick Perry violated state law by exceeding hisauthority when he mandated that Texas sixthgraders be vaccinated against the HPV vaccine.John and Jane Does 1-3 v. Rick Perry, 1d. No.07-000-553 (Travis County, Texas; filed 22 Feb-ruary 2007).


Connecticut. Three abortion-related billswere introduced in the state legislature. A housebill would require that prior to the performanceof an abortion, a physician or counselor mustprovide the woman seeking an abortion withan ultrasound photograph of the fetus for thepurpose of helping women make informed de-cisions about abortion. Two senate bills wouldassure that sexual assault victims receive infor-mation about and access to emergency contra-ception. H.B. 6108, S.B. 1343, S.B. 685, Gen.Assem., Jan. Sess. (Conn. 2007).

Florida. Two virtually identical bills wereintroduced in the state legislature to assure thatsexual assault victims receive information aboutand access to emergency contraception. H.B.1191, S.B. 1156, 109th Gen. Assem., Reg. Sess.(Fla. 2007).

Georgia. A bill passed the state house thatwould require every woman seeking an abor-tion to undergo and review an ultrasound of herfetus before an abortion may be performed. Af-ter passing, it was sent to the senate, whichmade the ultrasound or sonogram voluntary;however, the physician must either offer to per-form one or provide the patient with a list ofproviders, facilities, and clinics that can per-form the procedure. The senate is insisting uponits version, which the house is now consider-ing. 147, 149th Gen. Assem., Reg. Sess. (Ga.2007).

Hawaii. Four bills were introduced in thestate legislature to assure that victims of sexualassault receive information and access to emer-

gency contraceptives. H.B. 762, H.B. 466, S.B.1110, H.B. 1067, 24th Leg., Reg. Sess. (Haw.2007).

Indiana. Two bills were introduced in thestate senate to amend the language of currentabortion informed consent requirements. Bothlaws also require an 18-hour mandatory wait-ing period between the time when the womanreceives such information and the actual abor-tion procedure. S.B. 172, S.B. 135, 115th Gen.Assem., Reg. Sess. (Ind. 2007).

Kentucky. A bill requiring physicians to pro-vide a patient with information pertaining tofetal pain at various stages of an abortion pro-cedure passed the state senate on 1 March 2007and has been delivered to the House Commit-tee on Health and Welfare. Specifically, the billwould require physicians to administer anes-thetic to a fetus of 20 weeks gestational age orolder prior to performing an abortion and in-clude fetal pain information as part of the in-formed consent process. Under the bill, any vio-lation of these requirements is a Class D felony.S.B. 80, 2007 Leg., Reg. Sess. (Ky. 2007).

Maine. A bill was introduced in the statelegislature to increase awareness about cervi-cal cancer and the HPV vaccine. L.D. 137, 123rdLeg., Reg. Sess. (Me. 2007).

Massachusetts. A bill was introduced in thestate house to amend existing pre-abortion re-quirements to require a 24-hour period betweenwhen a woman receives state-mandated infor-mation and performance of the abortion proce-dure. H.B. 1687, Gen. Assem., Reg. Sess. (Mass.2007).

Minnesota. Two bills were introduced in thestate legislature that would assure that sexualassault victims receive information and haveaccess to emergency contraceptives. S.B. 1266,H.B. 1442, 85th Gen. Assem., Reg. Sess. (Minn.2007).

Missouri. A bill was introduced in the statehouse that would require women to view an ul-trasound as part of the informed consent pro-cess prior to an abortion. H.B. 1225, 94th Gen.Assem., Reg. Sess. (Mo. 2007).

New Hampshire. A bill was introduced inthe state house that requires specific content forinformed consent disclosure prior to an abor-


tion and a 24-hour waiting period between whenthe woman receives such information and theprocedure. H.B. 744, 160th Gen. Assem., Reg.Sess. (N.H. 2007).

New York. A bill was introduced in the stateassembly to create provisions for advance di-rectives concerning the disposition ofcryopreserved embryos and gametes. A.B. 2531,2007 Leg., 230th Reg. Sess. (N.Y. 2007).

A bill was introduced in the state assemblythat requires specific informed consent and a20-hour waiting period between when a womanreceives the required information and the abor-tion procedure. A.B. 5720, 230th Gen. Assem.,Reg. Sess. (N.Y. 2007).

North Carolina. The state senate passed abill that requires school officials to provide theparents and guardians of children in grades fivethrough 12 information about the HPV vaccine.S.B. 260, 148th Gen. Assem., 2007 Sess. (N.C.2007).

Two bills were introduced in the state legis-lature to assure that victims of sexual assaultreceive information and access to emergencycontraception. H.B. 961, S.B. 968, 148th Gen.Assem., 2007 Sess. (N.C. 2007).

Oklahoma. A bill was introduced in the statesenate that would assure that victims of sexualassault receive information and access to emer-gency contraceptives. S.B. 105, 51st Gen.Assem., Reg. Sess. (Okla. 2007).

Oregon. A bill was introduced in the statehouse that dictates the content of informed con-sent and requires that there be a 24-hour wait-ing period between when information is dis-closed and an abortion procedure. H.B. 3415,74th Leg. Assem., Reg. Sess. (Or. 2007).

Pennsylvania. Two bills were introduced inthe state legislature to assure that victims ofsexual assault receive information about andaccess to emergency contraceptives. H.B. 288,S.B. 730, 191st Gen. Assem., Reg. Sess. (Pa.2007).

Rhode Island. Two bills were introduced inthe state legislature that would require specificinformation to be disclosed during the informedconsent process and a 24-hour waiting periodbetween such disclosure and the abortion pro-

cedure. H.B. 5849, S.B. 472, Gen. Assem., Jan.Sess. (R.I. 2007).

South Carolina. A bill was introduced in thestate house requiring a 24-hour waiting periodbetween required informed consent disclosureand the abortion procedure. H.B. 3766, 117thGen. Assem., 1st Reg. Sess. (S.C. 2007).

Another pair of bills was introduced thatwould require women who are seeking abor-tions to view an ultrasound of their baby as partof the informed consent process. S.B. 84, H.B.3355, 117th Gen. Assem., 1st Reg. Sess. (S.C.2007).

South Dakota. A bill passed the state senatethat allows a healthcare facility to refrain fromproviding emergency contraception or even in-formation about emergency contraception. S.B.187, 82nd Leg. Sess. (S.D. 2007).

Tennessee. Two bills were introduced in thestate legislature to ensure that sexual assaultvictims receive information about emergencycontraceptives, but the bill does not require theprovision of emergency contraceptives, and itincludes exemptions from the rule for certainhospitals. H.B. 1989, S.B. 2073, 105th Gen.Assem., Reg. Sess. (Tenn. 2007).

Texas. A bill was introduced in the state sen-ate that requires doctors to tell women seekingan abortion that the state will pay them $500 ifthey choose to put their child up for adoptioninstead of having an abortion. S.B. 1567, 80thLeg. (Tex. 2007).

A bill was introduced in the state house toensure that sexual assault victims receive in-formation and access to emergency contracep-tives. H.B. 2161, 80th Leg. (Tex. 2007).

Virginia. A bill was introduced in the statehouse that requires specific disclosure as partof informed consent and a 24-hour waiting pe-riod between disclosure and an abortion proce-dure. H.B. 2301, 2007 Gen. Assem., Reg. Sess.(Va. 2007).

A bill passed the state house that requiresall women considering an abortion to undergoan ultrasound. H.B. 2808, 2007 Gen. Assem.,Reg. Sess. (Va. 2007).

West Virginia. A bill was introduced in thestate house to modify existing informed con-


sent requirements and require a 24-hour wait-ing period between disclosure and an abortionprocedure. H.B. 2439, 78th Leg., Reg. Sess. (W.Va. 2007).

A bill was introduced in the state house thatrequires all women seeking an abortion to un-dergo an ultrasound procedure, whether medi-cally indicated or not. H.B. 2031, 78th Leg., Reg.Sess. (W. Va. 2007).

A bill was introduced in the state house toassure that sexual assault victims receive infor-mation and have access to emergency contra-ceptives. H.B. 2134, 78th Leg., Reg. Sess. (W.Va. 2007).

Wyoming. A bill was introduced in the statehouse that would require specific informed con-sent and a 24-hour waiting period between dis-closure and an abortion procedure. H.B. 144,59th Leg., Reg. Sess. (Wyo. 2007).

ORGAN AND TISSUE PROCUREMENT

Recent Cases, January 2007 – March 2007

*Federal. Ongoing case. The Eighth U.S.Circuit Court of Appeals (Minnesota, Nebraska,North Dakota, South Dakota, Eastern and West-ern Districts of Arkansas, Northern and South-ern Districts of Iowa, Eastern and Western Dis-trict of Missouri) in Wash. U. v. Catalona is re-viewing the lower court’s ruling that Washing-ton University in St. Louis owned the tissuesamples that William J. Catalona, MD, had col-lected for prostate cancer research while at theuniversity. The U.S. District Court for the East-ern District of Missouri held that the informedconsent documents signed by Catalona’s pa-tients, which specifically gave the doctor thepatients’ tissue samples and included the pa-tients’ right to withdraw from the study and re-quest that their tissue samples be destroyed,were “inconsequential” in its decision to grantfull property rights to the university. Appeal No.06-2286 (8th Cir. 15 May 2006). The case wasargued 13 December 2006. A decision shouldbe forthcoming shortly. Appeal No. 06-2286 (8thCir. 13 December 2006).

California. San Louis Obispo police and theMedical Board of California are investigating a

transplant surgeon for allegedly hastening thedeath of a patient in order to harvest his organsmore quickly. Hootan Roozrokh, MD, is beinginvestigated for violating a California law thatprohibits transplant surgeons from directing thecare of potential donors while the patient is stillin treatment. Roozrokh allegedly directed theadministration of “excessive” doses of painmedication while the potential organ donor wasstill in the operating room. The case was referredto the San Louis Obispo District Attorney andit is currently under review; as yet, no formalcharges have been filed.

*Massachusetts. Ongoing case. In Gonzaleset al. v. Katz et al., a probable case of first im-pression, an organ bank is being sued becausethe recipient of an organ contracted a rare formof cancer, allegedly from the organ supplied bythe bank. Both the recipient and the donor diedof the same rare form of cancer. In this part ofthe case, the court refused to dismiss the caseon grounds that the good faith immunity provi-sion of the Massachusetts Promotion of Ana-tomical Science Act did not apply in this case.The act does not apply to the clinical processby which the medical suitability of organs isdetermined but rather to those authorizing andreceiving anatomical gifts. 21 Mass. L. Rep. 351;2006 Mass. Super. LEXIS 358 (Mass. Super. Ct.19 July 2006). A hearing was held on 11 April2007 to refine the issues to be addressed. Thefirm representing the plaintiff is in the processof issuing depositions. A hearing is expectedlater this summer.


Federal. The Charlie Norwood Living Or-gan Donation Act, which clarifies that “paireddonations” do not violate the National OrganProcurement Act’s prohibition against receiv-ing “valuable consideration” for organs, passedin the U.S. House and was placed on the SenateLegislative Calendar on 14 March 2007. H.R.710, S. 487, 110th Cong. (1st Sess. 2007).

The Centers for Medicare and Medicaid Ser-vices (CMS) announced on 22 March 2007 newrules that would withhold Medicare funding


from transplant programs that were “poor ormarginal performers.” These regulations will beeffective as of 28 June 2007. 42 CFR Parts 405,482, 488, and 498.

The United Network for Organ Sharing(UNOS) is drafting a proposal to maximize thenumber of years of life gained from donated kid-neys by favoring younger recipients over olderones. Once finalized, this proposal would needto be approved by the Department of Health andHuman Services (DHHS). Meckler, Laura, “Do-nor Organs May Go to Youngest On Wait List,”Associated Press, 10 March 2007.

Arkansas. On 29 March 2007 the governorsigned into law the 2006 Revised Uniform Ana-tomical Gift Act. Ark. Stat. tit. 12, §§ 12-325(2007).

Idaho. On 23 February 2007 the governorsigned into law the 2006 Revised Uniform Ana-tomical Gift Act. Idaho. Stat. tit. 39, § 3703(2007).

Iowa. On 5 April 2007 the governor signedinto law the 2006 Revised Uniform AnatomicalGift Act. Iowa Stat. tit. 4, § 142(c).

*New Jersey. A bill passed the state legisla-ture that would require the New Jersey MotorVehicle Commission to share organ donor in-formation with federally designated organ pro-curement organizations. The governor has in-dicated that he will sign the bill. S.B. 1760,211th Leg., Reg. Sess. (N.J. 2006)

Also in New Jersey, a bill was withdrawnfrom further consideration that would haveamended the New Jersey Anatomical Gift Actto require that those involved in organ procure-ment not ask for an anatomical gift if they havereason to believe that the gift would be contraryto the decedent’s wishes or religious beliefs. Theamendment further would have barred the ana-tomical gift if a person who is listed in the statelist of potential surrogates indicates that such agift would be contrary to the decedent’s wishesor religious beliefs. S.B. 2378, 211th Leg., Reg.Sess. (N.J. 2007)

New Mexico. On 3 April 2007 the 2006 Re-vised Uniform Anatomical Gift Act became law.N.M. Stat. tit. 7, § 7242 (2007).

North Dakota. On 9 April 2007 the gover-nor signed into law the 2006 Revised Uniform

Anatomical Gift Act. N.D. Stat. tit. 23, § 0601(2007).

*South Carolina. A bill was introduced inthe state senate that would require all patientsto indicate, at the time of admission to a hospi-tal, whether or not they are an organ or tissuedonor, or both, and, if not, whether the patientor the patient’s family would be willing to dis-cuss organ or tissue donation, or both, shouldthe patient become a potential donor during hisor her stay in the hospital. The bill was referredto the Committee on Medical Affairs on 9 Janu-ary 2007. S.B. 131, 117th Gen. Assem., Reg. Sess.(S.C. 2007).

A bill was introduced in the state senate thatwould allow prison inmates to donate organsand bone marrow in exchange for commutedsentences. S.B. 417, 117th Gen. Assem., Reg.Sess. (S.C. 2007).

South Dakota. On 26 March 2007 the gov-ernor signed into law the 2006 Revised UniformAnatomical Gift Act. S.D. Stat. tit. 34, § 2640(2007).

Utah. On 7 March 2007 the governor signedinto law the 2006 Revised Uniform AnatomicalGift Act. Utah. Stat. tit. 26, § 2800 (2007).

Virginia. On 11 April 2007 the governorsigned into law the 2006 Revised Uniform Ana-tomical Gift Act. Vir. Stat. tit. 32, §§ 1-290.

UNCONVENTIONAL TREATMENT


Federal. On 21 February 2007 a suit wasfiled by the Americans for Safe Access againstthe DHHS and the U.S. Food and Drug Admin-istration (FDA) in an Oakland California fed-eral district court for allegedly violating the fed-eral Administrative Procedure Act by publiclyreleasing “false and misleading statements”about the benefits of the use of medical mari-juana. The suit is calling for the DHHS and theFDA to retract and correct statements that thereare no sound scientific studies supporting themedical use of marijuana. The government’s re-sponse is due 25 May 2007. Americans for SafeAccess v. Department of Health and HumanServices and Food and Drug Administration,


No. 007-01049 (C.D. Ca., Filed 21 February2007).


Federal. The FDA is considering regulationsto expand its current Compassionate-Use Pro-grams that make experimental drugs availableto individuals or groups under certain circum-stances. The rules make drugs available duringall stages of development, including duringPhase I testing, and allow manufacturers tocharge the cost of making and providing thedrugs, but not to make a profit. Such regula-tions would allow patients to use drugs beforesafety trials have been completed (Phase I) andbefore testing for efficacy has even begun (PhaseII). “Expanded Access to Investigational Drugsfor Treatment Use,” 71 Fed. Reg. 75147 (14 De-cember 2006).

Rhode Island. The state legislature is con-sidering a bill that will permanently legalizemedical marijuana use in the state. Such usewas already legal under a law passed in Janu-ary 2006, but that law was set to expire on 30June 2007 unless the legislature acted. H.B.6005, Gen. Assem., Jan. Sess. (R.I. 2007).

Washington. A bill received its first readingin the Health Care and Wellness Committee on18 January 2007 that requires the state depart-ment of health to determine the quantity of mari-juana that could be considered a reasonable 60-day supply. The existing law, Initiative 692,passed with 59 percent voter approval in 1998.It allows doctors to recommend but not pre-scribe marijuana for people suffering from in-tractable pain, but only allows a 60-day sup-ply to be possessed by any individual at onetime. This bill is intended to create a clear linefor law enforcement and individual patients.The bill is currently back in the senate to bevoted on as amended by the house. H.B. 1395,60th Leg., Reg. Sess. (Wash. 2007).

LIFE-AND-DEATH DECISIONS

Two major developments stand out in thisarea of the law for this quarter. The first is that

several states have adopted, or are consideringadopting, the new Uniform Anatomical Gift Act.Those new laws are reported under the “Organand Tissue Procurement” section of this column.The other development is electronic registriesfor advance directives. Those laws, and someothers of interest, are reported here.


Florida. On 20 March 2007, a Palm BeachCounty jury awarded $150,000 in damages tothe family of a patient who was kept alive byartificial means contrary to the wishes expressedin her advance directive. Linda Scheible, asPersonal Representative of the Estate ofMadeline Neumann, deceased v. The Joseph L.Morse Geriatric Center, Inc., Jaimy H. Bensimon,M.D., 21569 F. Supp. 919 (Fla. 2007).

*New York. In In re Guardianship of ChantelNicole R, the Supreme Court of New York, Ap-pellate Division, First Department ruled that theMental Hygiene Legal Service (MHLS) had theauthority to commence a special proceeding toobject to a mother of a mentally retarded childmaking medical decisions for her daughter con-cerning life-sustaining treatment. 821 N.Y.S.2d194; 2006 N.Y. App. Div. LEXIS 10922 (21 Sep-tember 2006). An appeal was dismissed with-out costs, by the court sua sponte, upon thegrounds that no substantial constitutional ques-tion is directly involved. 8 N.Y.3d 840; 862 N.E.2d 784; 2007 N.Y. LEXIS 107 (16 January 2007).


California. A bill was introduced in the stateassembly called the California CompassionateChoice Act. A.B. 374, 2007-2008 Leg., Reg. Sess.(Cal. 2007). The act would allow adults to re-quest that medication be prescribed to providecomfort and to assure a peaceful death if suffer-ing becomes unbearable. The act would alsoestablish procedures by which to implementsuch requests.

*Georgia. A bill passed in the state housethat revises Georgia’s advance directive laws.Among other things, the bill combines Georgia’s


living will and durable power of attorney pro-visions into one form. The state senate addedan amendment providing for the creation of aweb site for the purpose of providing consum-ers information on the cost and quality of health-care in Georgia. The senate passed an amendedversion of the bill. The senate version will stillhave to be approved by the house or some othercompromise will be needed before this piece oflegislation can be sent to the governor for sig-nature. H.B. 24, H.B. 24/SCSFA/1, 149th Gen.Assem., Reg. Sess. (Ga. 2007).

Hawaii. A bill was introduced in the statehouse to allow aid in dying. It is stuck in com-mittee and can no longer come to a vote thislegislative session. H.B. 675, 24th Leg., Reg.Sess. (Haw. 2007).

Kansas. A bill was introduced in the stateassembly that creates a presumption that allstate residents would want artificial nutritionand hydration even if there are known desiresto the contrary, unless there is clear and con-vincing evidence of an express, informed wishto withdraw nutrition and hydration in the “ap-plicable circumstances.” A.B. 2176, 82nd Leg.,Reg. Sess. (Kan. 2007).

New Hampshire. A bill was introduced inthe state house that prohibits lifesaving treat-ment from being withdrawn from developmen-tally disabled persons or persons who once werementally competent but have lost that compe-tency. Life-sustaining treatment could not bewithdrawn even if the patient had previouslyindicated such wishes while competent. H.B.244, 160th Gen. Court, Reg. Sess. (N.H. 2007).

A bill was introduced to require the origi-nal copy of an advance directive for it to be fol-lowed. H.B. 244, 160th Gen. Court, Reg. Sess.(N.H. 2007).

*New Jersey. Two virtually identical billswere introduced in the state legislature thatwould require surrogate decision makers tomake healthcare decisions in accordance witha patient’s religious beliefs. A.B 3514, S.B. 2380,212th Leg., Reg. Sess. (N.J. 2006).

*Texas. A bill was introduced in the statesenate that, among other things, provides fortransferable physicians’ orders, and prohibitshealthcare providers or insurance companies

from requiring advance directives as a condi-tion for receiving healthcare services. S.B. 28,80th Leg. (Tex. 2007).

A bill was introduced in the state house thatclarifies that advance directives can be used torequest continuation of life-sustaining treat-ment. H.B. 1094, 80th Leg. (Tex. 2007).

Vermont. The state legislature voted downthe Patient Control at the End of Life Act. Theact would have decriminalized aid in dying.H.B. 44, S.B. 63, 69th Leg., Reg. Sess. (Vt. 2007).

Wisconsin. A bill was introduced in the statesenate that permits an individual, of soundmind and over 18 years of age, to request, inwriting, medication from a physician for thepurpose of ending his or her life. S.B. 151, 2007Reg. Sess. (Wis. 2007).


Canada. Ramesh Sharma, MD, of Vernon,British Columbia, has pleaded guilty to coun-seling or aiding suicide under Sec. 241 of TheCriminal Code of Canada. He could be impris-oned for up to 14 years. He will be sentencedon 11 June 2007. Hilary White, “Canadian Doc-tor Pleads Guilty to Attempted Assisted SuicideCharge,” LifeSiteNews.com, 4 April 2007, ac-cessed 28 April 2007.

THE RIGHT TO ACCESS AND CONTROLMEDICAL INFORMATION


*California. Ongoing litigation. Taus v.Loftus, et al. is a case in which a child abusevictim gave permission (at age 17) — and so didher father — for the young woman to be inter-viewed, and for the taped interview to be shownfor “educational purposes.” A case study waspublished that referenced “Jane Doe,” but otheridentifying information was disclosed about theyoung woman when the researcher gave pre-sentations about the case, including videotapedinterviews with the subject in which thesubject’s first name was used by the researcher,and the city where the subject lived as a child


was disclosed. Based on this information, inconjunction with information disclosed in theresearcher’s published case study, reporters dis-covered more about the case and published al-legedly defamatory remarks about the subjectand the researcher’s claims regarding her recov-ery of repressed memories. 2005 Cal. App.Unpub. LEXIS 3048, 22 media L. Rep. 1545.Taus v. Loftus, et al., 2006 CA S. Ct. S133805.On appeal, the opinion was affirmed in part andreversed in part, and the matter is remanded tothe court of appeals for further proceedings.2007 Cal. LEXIS 2340 (26 February 2007) (Case# S133805).


Federal. A bill was introduced in the Housethat, among other things, will encourage the useof electronic health records. Hillary RodhamClinton has pledged to reintroduce a similar billin the Senate. H.B. 1952, 110th Cong. (1st Sess.2007). Colby Itkowitz, “Clinton to ReintroduceHealth IT, Respite Care Proposals,” Con-gressional Quarterly, 17 February 2007, Health-Beat.

Connecticut. The state will use a $5 milliongrant to develop and implement an electronichealth records system for 35,000 Medicaid ben-eficiaries. Abram Katz, “State switching to elec-tronic med records,” New Haven Register, 29January 2007, http://www.nhregister.com/site/index.cfm?newsid= 17777112&BRD=1281&PAG=461&dept_id=517515&rfi=8, accessed 29 April2007.

*Iowa. A bill to implement electronic healthrecords systems incrementally throughout thestate died in committee. H.B. 2637, 81st Gen.Assem., 2nd Sess. (Iowa 2005).

Oklahoma. A bill was introduced to allowgovernment officials to search offices and medi-cal files of abortion providers without cause,warrant, or announcement. S.B. 617, 51st Gen.Assem., Reg. Sess. (Okla. 2007).

Vermont. The Vermont Department ofHealth has established an electronic registry foradvance directives. The Vermont Advance Di-

rective Registry can only be accessed by autho-rized healthcare providers, funeral directors,and crematory operators. Any information sentover the internet will be encrypted. Vt. Stat.Ann. tit. 18, § 231 (2007).

MEDICAL TESTING

Concerns about the disclosure of genetictesting and the effect such disclosures hasprompted several lawmakers to introduce leg-islation to prevent genetic discrimination.

Please note there are also testing-relateddevelopments reported in the HIV section of thiscolumn.


Federal. Two bills were introduced in Con-gress that would make it illegal for an employeror health insurer to access genetic informationand then make either insurance coverage ordecisions regarding the hiring, firing, or promo-tion of an employee based on such information.The House bill was passed and the Senate ver-sion is expected to pass shortly. H.B. 493, S.B.358, 110th Cong. (1st Sess. 2007).

Connecticut. A bill was introduced in thestate house that would require newborns begiven a deoxyribonucleic acid (DNA) test andthat the results be entered upon the birth recordand shared with the child’s parents. H.B 5743,2007 Gen. Assem., Jan Sess. (Conn. 2007).

*Ohio. A bill was introduced in the statehouse that would limit the liability of hospi-tals, among other things, for the genetic screen-ing of newborns. The bill died at the end of thelast general assembly. H.B. 692, 162nd Gen.Assem., Reg. Sess. (Ohio 2006).

New York. Two bills were introduced in thestate legislature that would create a geneticsadvisory council. The council would be chargedwith advising the governor and legislature onissues relating to genetic tests, access to infor-mation, privacy, and counseling. A.B. 03284,S.B. 01633, 2007 Leg., 230th Reg. Sess. (N.Y.2007).


DECISION-MAKING CAPACITY/COMPETENCY


*Federal. The U.S. DHHS Centers for Medi-care and Medicaid Services (CMS) publishedits final rule on patients’ rights with respect tothe use of restraints and seclusion on 8 Decem-ber 2006. These rules became effective 6 Febru-ary 2007 and apply to all participating Medi-care and Medicaid hospitals, including short-term, psychiatric, rehabilitation, long-term,children’s, and alcohol/drug treatment facilities.The rule expands the category of practitionerswho may conduct patients’ evaluations whenrestraint or seclusion is being used, and includesspecial notice requirements regarding patients’care, records, and the right to be free of the useof inappropriate restraints or seclusion. The rulealso includes stricter reporting requirements fordeaths associated with the use of restraints orseclusion. 71 Fed. Reg. 71378 (8 December2006).

HOSPICE, PALLIATIVE CARE,AND PAIN CONTROL


Federal. A bill was introduced in the U.S.Senate called the Unborn Child Pain AwarenessAct. The act would require medical officials tonotify expectant mothers seeking abortion thattheir unborn child may experience pain whilein utero. The bill is currently in committee. S.356, 110th Congress, Reg. Sess. (2007).

On 21 December 2006 President Bush signedinto law the Lifespan Respite Act, which pro-vides $289 million for training and recruitingworkers and volunteers, and educating familycaregivers about their services. “Bush signsFerguson’s respite care bill,” Associated Press,21 December 2006.

New York. A bill was introduced in the stateassembly called the Palliative Care Education

and Training Act, which provides funds to edu-cate healthcare providers, among other things,about pain management. A.B. 2974, 2007 Leg.,230th Reg. Sess. (N.Y. 2007).

DEFINITION OF DEATH


*Texas. Grotti v. State of Texas, 2006 Tex.App. Lexis 10018 (17 November 2006). Thecourt overturned a jury verdict that held that adoctor had caused a patient’s death by occlud-ing the patient’s endotracheal tube (ET) after 60minutes of coding the patient with little suc-cess. At the time of the occlusion, the patient’srespiration had slowed to three or four respira-tions per minute; she had no heart sounds orpulse, but some electrical activity on the moni-tor. The court found that (1) the evidence con-trary to the verdict demonstrates that the pa-tient experienced irreversible cessation of herspontaneous respiratory and circulatory func-tions prior to 21:50 (the time of the occulation),and (2) her respiratory efforts between 20:50 and21:50 were insufficient to maintain life. It ispretty clear, given the facts of this case, that therewouldn’t have been a trial if the defendant doc-tor had simply withdrawn the patient’s ET tube,rather than holding her finger over it until thepatient stopped moving. (The physician hadoccluded the ET tube for five minutes.) The casewas remanded for a new trial.

OVERSIGHT: PATIENT TRUST


Federal. The Inspector General of the DHHS,Daniel Levinson, has reopened the cases of 103National Institutes of Health (NIH) scientists,most of whom only received reprimands andwarnings after an ethics probe in 2006 revealedpossible conflict of interest. After the earlierprobe, only a few scientists were sanctioned.One researcher pled guilty to a misdemeanorconflict of interest charge and was sentenced toforfeit $300,000 and to do community service.


Another was suspended from NIH work for 45days. Some others received suspensions of justa few days. Criticism from members of the U.S.House Energy and Commerce Committeespurred Levinson to reopen the investigation.The inspector general has also agreed to reviewcurrent conflict-of-interest policies regardingscientists who do not work at NIH but receivefederal grant money.

Louisiana. The state supreme court vacatedon 9 February 2007 two lower court rulings thatthe state’s $500,000 cap on damages in medicalmalpractice lawsuits was unconstitutional. Thecourt held the cap was not at issue and re-manded the cases for further consideration onthe appropriate questions. Susan Arrington, etal. v. Galen-Med, Inc., et al., Nos. 06-C-2923,06-C-2944, 06-C-2968 (La. 2007); Charles andSharon Taylor, Jr. v. Dr. Richard J. Clement andThe Louisiana Patient’s Compensation Fund,Nos. 06-C-2518, 06-C-2581, 06-C-2600 (La.2007).


Federal. On 12 February 2007, a resolutionwas reintroduced that would create a “patients’bill of rights” that would allow patients to suehealth-maintenance organizations for impropermedical decisions. H.R. 979, 110th Leg., Reg.Sess. (2007).

The DHHS Office for Human Research Pro-tections has released updated guidelines forclinical trials sponsored or supported by DHHS.Now all “unanticipated problems” must be re-ported. An unanticipated problem is a sub-classof adverse event. Most adverse events are notunanticipated. “An unanticipated incident, ex-perience, or outcome will generally warrantconsideration of substantive changes in the re-search protocol or informed consent process/document or other corrective actions in orderto protect the safety, welfare, or rights of sub-jects.” An incident is an unanticipated problem“if it is of an unexpected nature, severity or fre-quency given the research procedures describedin the IRB-approved research protocol or in-

formed consent form and taking into accountthe characteristics of the subject population; ifit is or may be related to participation in theclinical trial; and if it may place trial partici-pants or others at greater risk of physical, psy-chological, economic or social harm than waspreviously known.” “Guidance on Reviewingand Reporting Unanticipated Problems Involv-ing Risks to Subjects or Others and AdverseEvents,” 15 January 2007, http://www.hhs.gov/ohrp/policy/ AdvEvntGuid.htm#Q1, accessed27 April 2007.

Alabama. A bill was introduced to requirethe reporting and disclosure of hospital infec-tion rates, “Hospital Infections Disclosure Act.”S.B. 409, 2007 Leg., Reg. Sess. (Ala. 2007).

Arkansas. The “Health Facility InfectionDisclosure Act of 2007,” that requires the re-porting and disclosure of hospital infectionrates, was signed into law on 3 April 2007. H.B.2735, 86th Gen. Assem., Reg. Sess., (Ark. 2007).

*California. A bill was introduced in theCalifornia Assembly to establish an Office of Pa-tient Advocate in the State Department of Pub-lic Health. The bill passed out of the HealthCommittee on 7 March 2007 and was re-referredto the Appropriations Committee. It has not yetbeen scheduled for a hearing. 2007 Text A.B.52 (4 December 2006); A.B. 52, 2007-2008 Gen.Assem., Reg. Sess. (Calif. 2007).

Delaware. A bill was introduced in the statehouse to require the reporting and disclosureof hospital infection rates. HB 47, 144th Gen.Assem., Reg. Sess. (Del. 2007).

Massachusetts. A bill was introduced in thestate senate to require the reporting and disclo-sure of hospital infection rates. S.B. 1269, 185thGen. Court, Reg. Sess. (Mass 2007).

Michigan. A bill was introduced in the statehouse to require the reporting and disclosureof hospital infection rates. H.B. 4158, 2007 Leg.,Reg. Sess. (Mich. 2007).

Minnesota. A bill was introduced in the statehouse that would require the reporting and dis-closure of hospital infection rates. H.F. 1076,S.F. 755, 85th Leg., Reg. Sess. (Minn. 2007).

Oregon. Two virtually identical bills wereintroduced in the state legislature that would


require the reporting and disclosure of hospitalinfection rates. H.B. 2524, S.B. 960, 74th Leg.Assem., Reg. Sess. (Or. 2007).

Texas. Two virtually identical bills were in-troduced in the state legislature that would re-quire the reporting and disclosure of hospitalinfection rates. H.B. 1398, S.B. 288, 80th Leg.(Tex. 2007).

Washington. A bill passed the state legisla-ture that would require the reporting and dis-closure of hospital infection rates. The bill iscurrently awaiting the governor’s signature. H.B.1106, 60th Leg., Reg. Sess. (Wash. 2007).

HIV


California. On 13 April 2007 the CaliforniaDistrict Court dismissed a suit filed by the AIDSHealthcare Foundation against Pfizer in Los An-geles Superior Court for allegedly promoting therecreational use of its erectile dysfunction drugViagra. The complaint alleges that the drug isportrayed as a “party drug” that can improvethe sex life of healthy men and that such use isnot approved by the FDA. AIDS HealthcareFoundation v. Pfizer, No. CV07-1154 (C.D. Cal.Filed 22 January 2007).


Federal. In January a resolution was intro-duced in the U.S. House to allow the distribu-tion of condoms in prisons. On 2 February thebill was referred to the Subcommittee on Crime,Terrorism, and Homeland Security. H.R. 178,110th Leg., Reg. Sess. (2007).

By the end of 2007 all states and D.C. willbe required to report their HIV cases by name,not anonymously, if they wish to receive fund-ing from the DHHS under the Federal RyanWhite Grant Program. 42 U.S.C. § 201.

The FDA is considering changing its policythat prohibits men who have sex with men fromever donating blood. The American Red Cross,the American Association of Blood Banks, and

America’s Blood Centers believe it would bemore reasonable to prohibit such men from do-nating only if they have had sex with anotherman within 12 months instead of ever in theirlifetime. FDA Workshop on Behavior-BasedDonor Deferrals in the NAT Era, Wednesday, 8March 2006, Lister Hill Auditorium, NationalInstitutes of Health, Bethesda, Maryland.

Arkansas. On 9 March 2007 the state legis-lature enacted a bill that would require stateprison inmates to receive an HIV test beforebeing released. H.B. 1444, 89th Gen. Assem.,Res. Sess. (Ark. 2007).

California. A bill was introduced in the Cali-fornia Senate that would allow HIV-positivemen to use their own sperm in fertility treat-ments. There is a process by which the spermcan be washed. S.B. 443, 2007-2008 Leg., Reg.Sess. (Calif. 2007).

Georgia. The state legislature passed a billthat would require doctors to offer all pregnantwomen an HIV test. Women can opt out of thetest, but such refusal becomes part of their medi-cal record. H.B. 429, 149th Gen. Assem., Reg.Sess. (GA 2007).

Illinois. A bill to allow condom distributionin prisons died in committee. H.B. 686, 95thGen. Assem., Reg. Sess. (Ill. 2007).

Maine. A bill was introduced to amend thestate’s HIV testing laws to bring them in linewith the September 2006 recommendations ofthe Centers for Disease Control and Prevention(CDC), which suggest that HIV testing becomea part of routine medical care. The proposedMaine bill would drop the requirements forwritten consent and pre-test counseling thatnow exist under state law. The bill has an opt-out provision. S.P. 180, 123rd Maine Senate,Reg. Sess. (ME 2007).


Kazakhstan. In Kazakhstan, 21 doctors areon trial for medical malpractice because theyprovided HIV-tainted blood transfusions to 100children at a children’s hospital, who subse-quently tested positive for HIV. Ilan Greenberg,


“Doctors, and a Medical Procedure, on Trial inKazakhstan,” New York Times, 20 March 2007,http://web.lexis- nexis.com.spot.lib. auburn.edu/universe/document?_ m=60ed914f881f58e3cd2100b490666e3d&_d, accessed 25 April 2007.

Libya. Five Bulgarian nurses and a Pales-tinian doctor have filed an appeal with theLibyan Supreme Judiciary Council to overturna death sentence handed down by a lower court.The healthcare workers were convicted of in-tentionally infecting 426 children at Al FatehChildren’s Hospital in Benghzi Libya with HIV-contaminated blood products and were sen-tenced to death by firing squad. The LibyanSupreme Judiciary Council is the court of finalappeal and is expected to render a decision thissummer; http://www.kaisernetwork.org/daily_report.cfm?DR_ID=43062&dr_cat=1, accessed20 March 2007.

CONSCIENTIOUS OBJECTIONS(HEALTHCARE PROVIDERS AND RELATED

PROFESSIONS)

U.S. conscientious objector laws have theirroutes in the U.S. Bill of Rights First Amend-ment Free Exercise Clause and variationsthereon that exist in the states. The basic rule isthat governments can’t force individuals to dothings they believe to be against their religionor to be otherwise immoral. Generally, an ac-commodation for those who raise a conscien-tious objection must be made unless their exer-cise of that freedom would directly put some-one else at risk. This is why conscientious ob-jection, which is rarely a problem in most con-texts, can quickly become problematic in health-care, where a person’s access to care may be af-fected.

It is important to note that the prohibitionis against governments, not private individuals,and perhaps the best first step toward dealingwith such issues is through contract and notice.Healthcare providers can contract to have theirmoral views on certain issues respected by notrequiring that they perform certain proceduresor discuss certain medical options, but thenpatients need to be given notice of that particu-lar healthcare provider’s position or be provided

access to a different non-objecting healthcareprovider.


Colorado. On 15 March 2007 the governorsigned into law a bill which requires that sexualassault victims receive information about emer-gency contraceptives. Hospitals are not requiredto provide the contraceptives, but must provideinformation regarding such contraceptives.Pharmacies that do not wish to provide emer-gency contraceptives need not do so, but mustpost a sign stating that emergency contracep-tives are not available through that pharmacy.There are also provisions allowing for indi-vidual conscientious objectors to provide infor-mation about emergency contraception. S.B. 60,66th Gen. Assem., Reg. Sess. (Co. 2007).

Missouri. Four bills dealing with conscien-tious objections were introduced in the statelegislature. The first two bills would allow phar-macists and related professionals to refuse toprovide or dispense contraceptives in most cir-cumstances. But the other two bills would re-quire a pharmacist to fill any valid prescription.H.B. 412, S.B. 285, H.B. 156, S.B. 72, 94th Gen.Assem., Reg. Sess. (Mo. 2007).

A bill was introduced in the state house toallow for conscientious objection to participa-tion in any medical services in most circum-stances. The Missouri bill also allows insurancecompanies to refuse to provide coverage for anyservice that conflicts with the entity’s policies.H.B. 434, 94th Gen. Assem., Reg. Sess. (Mo.2007).

New York. Two bills were introduced in thestate senate that would prohibit pharmacistsfrom refusing to provide or dispense contracep-tives in most circumstances. S.B. 2317, S.B.2344, 230th Gen. Assem., Reg. Sess. (N.Y. 2007).

Oklahoma. A bill was introduced in the statesenate that would require pharmacies and phar-macists to fill all valid prescriptions. S.B. 555,51st Gen. Assem., Reg. Sess. (Okla. 2007).

Pennsylvania. Two bills were introduced inthe state legislature that would require a phar-macy or pharmacists to fill valid prescriptions.


H.B. 730, H.B. 316, 191st Gen. Assem., Reg. Sess.(Pa. 2007).

Rhode Island. A bill was introduced in thestate senate that would allow healthcare pro-viders to refuse to perform abortions or steril-izations on moral grounds. S.B. 452, Gen. As-sem., Jan. Sess. (R.I. 2007).

Two bills were introduced in the state legis-lature that would allow certain individuals torefuse to perform any medical services in mostcircumstances. S.B. 452, H.B. 5274, Gen.Assem., Jan. Sess. (R.I. 2007).

South Carolina. Two bills were introducedin the state legislature that would allow certainindividuals to refuse to participate in medicalservices in most circumstances and to allowpharmacists and related professionals to refuseto dispense contraceptives. H.B. 3283 (general),S.B. 126 (pharmacy related), 117th Gen. Assem.,Reg. Sess. 117 (S.C. 2007).

Texas. Two bills dealing with conscientiousobjections were introduced in the state legisla-ture. A house bill would allow pharmacists torefuse to provide or dispense contraceptives inmost circumstances, and a senate bill wouldrequire pharmacists to fill all valid prescrip-tions. H.B. 589, S.B. 1591, 80th Leg. (Texas2007).

Vermont. A bill was introduced in the statehouse that would allow certain individuals andentities to refuse to perform medical servicesunder most circumstances. It also allows insur-ance companies to refuse to cover any servicesthat conflict with the entities’ conscience or re-ligious beliefs. H.B. 315, 69th Gen. Assem., Reg.Sess. (Vt. 2007).

Virginia. A bill was introduced in the statehouse that would require pharmacies to fillvalid prescriptions. H.B. 2842, 2007 Gen.Assem., Reg. Sess. (Va. 2007).

West Virginia. Five bills dealing with con-scientious objections were introduced in thestate legislature. The first four bills would al-low hospitals, pharmacists, and related profes-sionals to refuse, under most circumstances, todispense substances that could be used as partof an abortion-related procedure. The last billwould prohibit the same from refusing to pro-

vide or dispense contraceptives. H.B. 2903, S.B.639 (hospitals), H.B. 2092, S.B. 743 (pharma-cists), H.B. 2416, 78th Leg., Reg. Sess. (W. VA.2007).

HEALTHCARE COVERAGE ISSUES


Federal. The Eighth Circuit Court of Ap-peals ruled on 15 March 2007 that the UnionPacific Railroad Company did not violate thePregnancy Discrimination Act when it decidedthat its health plan would not cover the cost ofcontraception. The court ruled that the plan wasnot discriminatory because it did not pay forany form of contraception, whether used by menor women. Brandi Standridge v. Union Pacific,479 F.3d; 2007 U.S. App. LEXIS 4914.


Federal. A resolution was introduced in theU.S. House that would require insurers to covermental illness at the same level as they coverphysical illness. H.R. 1424, 110th Leg., Reg.Sess. (2007).

The DHHS Centers for Medicare and Med-icaid Services (CMMS) is considering revisingan earlier interim final rule that required docu-mentation of citizenship before the infants ofundocumented immigrants could receive Med-icaid services.

A bill was introduced in the U.S. House thatwould provide universal health insurance to allU.S. residents. The AmeriCare Health Care Actwould create AmeriCare, a program that woulduse Medicare to provide health insurance to U.S.citizens who don’t receive coverage throughtheir employers and whose annual income fallsbelow 300 percent of the federal poverty level.H.R. 1841, 110th Leg., Reg. Sess. (2007).

Arizona. A bill was introduced in the statesenate that would require the state to provideno-cost prenatal care to women whose house-hold incomes are below 185 percent of the fed-eral poverty level. This is an increase in cover-


age for those women with household incomesbetween 133 percent and 185 percent of thepoverty level. S.B. 1361, 48th Leg., Reg. Sess.(Ariz. 2007).

Connecticut. A bill was introduced in thestate house to implement universal healthcarecoverage in Connecticut. H.B. 6655, 2007 Gen.Assem., Reg. Sess. (Conn. 2007).

Illinois. A bill called the “Illinois Health-care For All Act” was introduced in the statesenate to expand the state insurance plan. S.B.5, 95th Gen. Assem., Reg. Sess. (Ill. 2007).

Minnesota. A bill was introduced in the statehouse that would provide universal health cov-erage by 2011. H.F. 1856, Leg. 85, Reg. Sess.(Minn. 2007).

Rhode Island. Regulations took effect on 1April 2007 that would require state hospitals toprovide care free of charge to any uninsuredresident with an income at or below 200 per-cent of the federal poverty line. Stat. aait. 23, §1714.

Virginia. A bill was introduced in the statesenate that would require health insurers tocover the cost of stem cell transplants. S.B. 991,2007 Gen. Assem., Reg. Sess. (Va. 2007).

Washington. Two bills were introduced inthe state legislature that would phase in uni-versal health coverage over a five-year period.S.B. 5930, H.B. 2098, 60th Leg., Reg. Sess.(Wash. 2007).

OWNERSHIP OF HUMANGENETIC MATERIAL


Federal. A resolution was introduced in theU.S. House that would prohibit the patentingof human genetic material. The Genomic Re-search and Accessibility Act was refereed to theSubcommittee on Courts, the Internet, and In-tellectual Property. H.R. 977, 110th Leg., Reg.Sess. (2007).

Documents

Legal Trends in Bio-Ethics; Summer 07